Yesterday, the Executive Order titled “Ending Taxpayer Subsidization of Open Borders” may have upended a 1998 interpretation of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), commonly known as the Clinton Welfare Bill. This interpretation had exempted several community-based grant programs, including Head Start and the Section 330 Health Center Program, from requirements to collect information such as Social Security Numbers and other proof of legal status.

PRWORA was initially enacted to discourage unlawful immigration by making legal status a prerequisite for individuals to directly receive public benefits, such as Medicaid and the Supplemental Nutrition Assistance Program (SNAP). However, the 1998 interpretation of PRWORA had excluded certain grant programs from PRWORA’s requirements on the grounds that the funds were awarded to community organizations rather than being provided directly to individuals or families. As a result of this interpretation, a small number of grant programs largely in health and education were exempt from the PRWORA requirements.

The new Executive Order includes a directive to federal agencies that they will, among other things, “identify all federally funded programs administered by the [federal] agency that currently permit illegal aliens to obtain any cash or non-cash public benefit, and, consistent with applicable law, take all appropriate actions to align such programs with the purposes of this order and the requirements of applicable Federal law, including the PRWORA” and “enhance eligibility verification systems, to the maximum extent possible, to ensure that taxpayer-funded benefits exclude any ineligible alien who entered the United States illegally or is otherwise unlawfully present in the United States.” Finally the Executive Order directs that “[w]ithin 30 days of the date of this order, the Director of the Office of Management and Budget and the Administrator of the United States Department of Government Efficiency (DOGE) Service, in coordination with the Assistant to the President for Domestic Policy, shall further: (i) identify all other sources of Federal funding for illegal aliens; and (ii) recommend additional agency actions to align Federal spending with the purposes of this order, and, where relevant, enhance eligibility verification systems.”

This Executive Order, similar to past Executive Orders, is a directive to grant making agencies to implement procedures consistent with the above. Consequently, further federal agency action is necessary to implement changes to the affected federal grant programs. Moreover, there is considerable caselaw, much of it from the Supreme Court, on the federal government reversing longstanding statutory interpretations (generally requiring a rationale and a clear statement of the change in policy). We would expect legal challenges to the policy change expressed in this Executive Order.